When patients suffer brain injuries as a result of medical negligence, they may be entitled to compensation for medical expenses, lost income (in the case of adult patients), general damages for pain and suffering and loss of amenities of life, future damages, etc. In this article, we explore various successful claims in medical negligence and the damages awarded by the Malaysian courts to patients and their families.
Brain Injuries from Medical Negligence
Brain injuries or brain damage resulting from medical negligence can occur when a healthcare professional fails to provide an adequate standard of care, leading to an injury or damage to the patient’s brain.
Such injuries can cause significant physical, cognitive, and emotional impairments, including memory loss, speech and language difficulties or impairments, motor problems, neurological deficits, and premature death.
Such injuries would also have devastating consequences for patients and their family members. It can lead to a lifetime of medical expenses, lost income, and reduced quality of life. In addition, the emotional and psychological impact of brain injuries can be profound, both for the patient and their loved ones.
Compensation for Patients Who Suffered Brain Injuries from Medical Negligence
The courts in Malaysia have in successful cases awarded damages that total millions of ringgit for loss and damage including special damages, pre-trial damages, general damages, aggravated damages, and future damages as well as party-and-party costs and interest.
Some of the successful plaintiffs include infants who suffered a hypoxic insult to their brains during the birth events. There are also adult patients who suffered brain injuries during the course of medical treatment. Unfortunately, not all patients who suffer brain injuries are able to survive the consequences
The goal of such medical negligence claims is to seek compensation and redress for the life-long and permanent injuries suffered by such patients by way of court-awarded damages. In Malaysia, damages are assessed on a once-and-for-all basis (unlike in the United Kingdom). The courts when determining damages will have to decide how much money is to be awarded to cover the costs of such patients’ needs for the remainder of their lives.
Justice Vazeer Alam stated as follows in Nurul Husna binti Muhammad Hafiz & Anor v the Government of Malaysia & Ors [2015] 1 CLJ 825, a case concerning an infant patient who suffered brain injuries:
“I will now move on to the issues of the future needs of Nurul Husna. The award of future damages or cost of future care in Malaysia is done on a once-and-for-all assessment basis, unlike in England where damages may be assessed periodically, following judgment on liability. Thus, in Malaysia the victim cannot return to Court in the future to claim more damages because his or her injuries have worsened, or if unexpectedly the victim has more needs and the original award had proved inadequate …”
“Thus, in making this once and for all assessment, courts are invariably guided by the opinions of experts and in this regard the court must see that the expert opinion is reasonable, responsible and respectable; and that it stands up to a logical analysis. (see: Bolitho v City Hackney Health Authority [1997] 4 All ER 771). The future exigencies of the plaintiff’s needs are best determined by educated and well-informed surmises and postulations by experts in that field. The Courts have had regard to well established principles in trying to make a reasoned and well-informed award of future damages. The standard of proof regarding future damages is not the balance of probabilities but the possibility of danger of some adverse future developments…”
Infant Patients with Cerebral Palsy
Infants who suffer from brain injuries are often diagnosed with cerebral palsy, which is a group of disorders that can impact their ability to move normally in different parts of their bodies. This condition affects their posture, gait, muscle tone, and coordination of movement. The term “cerebral” refers to the cerebrum, which is the part of the brain that controls motor function, while “palsy” describes the paralysis of voluntary movement in certain parts of the body.
Unfortunately, there is currently no cure for cerebral palsy, and patients with this condition are at a much higher risk of suffering from seizures, spinal contractures, developmental issues, and other health problems. Infants with cerebral palsy are also more susceptible to diseases and are more likely to become ill than the average infant. Sadly, many of these infants do not survive or have significantly reduced life expectancies compared to the average person.
However, the courts often award damages to patients with brain injuries for the cost of future treatment, therapies, and rehabilitation, with the aim of improving their quality of life and potentially prolonging their shortened lives. This principle which arose from the English case of James Robshaw v United Lincolnshire Hospitals NHS Trust [2015] Med. L.R. 339 has been accepted by the Malaysian courts in various cases.
Many cases involving cerebral palsy patients are related to birth or perinatal asphyxiation or hypoxia resulting from obstetric treatment provided to the mother and unborn fetus. This may occur due to a delay in detecting fetal distress, poor monitoring of the mother’s labour, or a delay in delivering the fetus. Infants born under these circumstances often have poor outcomes, including metabolic acidosis, low Apgar scores that do not improve (although high Apgar scores are not conclusive evidence of the infant’s well-being), the need for intubation post-delivery and prolonged treatment in the Neonatal Intensive Care Unit.
In many cases, such infants are later diagnosed with hypoxic ischemic encephalopathy, which occurs when the baby’s brain doesn’t receive enough oxygen during delivery, and spastic quadriplegia, a type of cerebral palsy that affects movement in the arms and legs.
In Nur Zulaikha binti Dzulzaili v Medi-Circle Sdn Bhd v 2 Ors, the infant Zulaikha was delivered in 2003. She suffered severe injuries to her brain as a result of negligent treatment provided to her mother at a private hospital while in labour.
A suit was filed in 2018 and the High Court allowed Zulaikha’s claim and awarded damages of approximately RM8 million excluding interest and costs. This remains one of the highest quantum of damages ever awarded by the trial courts in a medical negligence claim.
The defendants in that case appealed. The Court of Appeal allowed the two doctors’ appeal and held the hospital solely liable for the injuries suffered by Zulaikha (see Medi-Circle Sdn Bhd v Nur Zulaikha binti Dzulzaili & Other Appeals [2022] 1 LNS 1546). The Court of Appeal also reduced the multiplier applied by the High Court to calculate future damages, effectively reducing the total damages to approximately RM6 million excluding interest and costs.
On 24.2.2023, the Federal Court dismissed the hospital’s appeal on the question of whether there was a duty of care in law owed to unborn fetuses. The Federal Court in dismissing the appeal declined to answer the question of law posed by the hospital and effectively confirmed that the hospital does owe a duty of care to unborn fetuses.
In Adam Azfar Syahmi bin Zamzuri v The Government of Malaysia & 13 Ors, the infant was born in 2008 and suffered severe brain injuries as a result of treatment received by his mother at a Government hospital while she was in labour. The suit was filed in 2019 for medical negligence. The Government admitted liability in 2021 but disputed the claim for damages.
Following a trial to determine the damages to be awarded, the High Court in 2022 awarded the sum of approximately RM4.1 million in damages and costs, excluding interest. The Government did not appeal the High Court’s decision.
In Yasmin Nabilah binti Zulhilmi v The Government of Malaysia & 9 Ors, the infant suffered severe brain injuries as a result of, amongst others, a delay in undertaking the delivery of the fetus. The infant suffered prolonged hypoxia in utero.
The Government admitted liability and the High Court awarded damages of approximately RM1.4 million (see Yasmin Nabilah binti Zulhilmi v The Government of Malaysia & 9 Ors [2021] 1 LNS 320). The award was later increased to approximately RM2.9 million by the Court of Appeal in 2022.
Adult Patients with Brain Injuries
In Naren a/l Vejayan v The Government of Malaysia & 67 Ors, the patient Naren was 26 years of age when he was involved in a motor vehicle accident in Johor Bahru in 2016. Naren was then brought to a Government hospital in Johor Bahru. As a result of negligent treatment, he suffered severe injuries to his brain. His injuries left him in a vegetative state and Naren is cared for entirely by his mother and brothers.
In Naren’s case, the Government had admitted liability and the case proceeded to a trial to determine the quantum of damages to be awarded. After the trial, the High Court awarded damages of approximately RM4.8 million excluding interest. Some of the notable items of damages included the following:
- RM1.2 million as future damages for the cost of nursing care;
- RM500,000 as future damages for the cost of purchasing suitable accommodation for Naren and his caregivers;
- RM400,000 as general damages for Naren’s pain and suffering and loss of amenities of life; and
- RM288,000 as damages for Naren’s loss of income (before his injuries, Naren earned money from undertaking odd jobs including repairs and renovations in households and as a part-time driver).
Naren’s case is currently pending appeal in the Court of Appeal.
In Fareed Reezal bin Arund v Pantai Medical Centre Sdn. Bhd. & 4 Ors, the patient Fareed was 44 years old in 2015 when he suffered severe brain injuries as a result of negligent medical treatment. Before his injuries, he was a director and majority shareholder of his own company and earned a sizable monthly income.
Fareed’s claim against the hospital was allowed by the High Court which also awarded damages of approximately RM7 million. The total award sum was increased to RM7.5 million by the Court of Appeal with some variations to various items of damages (see Pantai Medical Centre Sdn Bhd v Fareed Reezal bin Arund (mendakwa melalui isteri dan wakil litigasinya Wan Zafura binti Wan Kassim) and another appeal [2022] 1 LNS 1914).
Fareed’s case is currently pending appeal in the Federal Court. Unfortunately, Fareed passed away before the said appeal could be heard.
In Siow Ching Yee v Dr Megat Shiraz bin Megat Abd Rahman & 2 Ors, the patient Siow was 35 years old in 2010 when he suffered severe brain injuries as a result of negligent treatment which he received at a private hospital. Siow was a director and received, amongst others, directors’ fees for managing two companies.
The High Court in allowing Siow’s claim against the anaesthetist defendant awarded damages of approximately RM1.9 million excluding interest and costs and which award was increased to approximately RM2 million by the Court of Appeal. Siow’s case is currently pending appeal in the Federal Court.
In Yusnita binti Johari v The Government of Malaysia & 16 Ors, the patient Yusnita was 32 years old in 2013 when she suffered severe brain injuries as a result of negligent treatment received at a Government hospital. The injuries to her brain came as a result of poor management of her condition post-delivery of her child, following which she suffered significant blood loss and required cardiopulmonary resuscitation.
Before her injuries, Yusnita, a mother of two young children, worked as an administrative executive and also sold cakes on a part-time basis.
The High Court allowed Yusnita’s claim in 2021 and awarded approximately RM4.8 million in damages, excluding interest. Yusnita’s case is pending appeal in the Court of Appeal.
In Henry Siang Len v Universiti Kebangsaan Malaysia & 17 Ors, the patient Henry was a 22-year-old Myanmar refugee who was assaulted by a group of people sometime in 2010. He sought treatment for his injuries at a university-owned hospital. He was unfortunately given 5 times the intended dosage of the anaesthetic drug Ketamine, and as a result, he suffered a cardiac arrest and was diagnosed later to have suffered severe brain injuries.
The High Court allowed Henry’s claim and awarded approximately RM730,000 in damages and costs, which was increased later by the Court of Appeal in 2020 to approximately RM1.7 million excluding interest.
Henry was married and awaiting resettlement in the United States of America prior to his injuries. His pregnant wife had gone ahead to the U.S. and has since resettled there and given birth to their son. Henry remains in Malaysia in a vegetative state and is cared for by a charitable organisation. Henry’s wife did not return to see him following the events at the hospital.
Cerebral Palsy from Non-Obstetric Events
There have been medical negligence cases involving cerebral palsy patients arising out of non-birth events. In Ahmad Thaqif Amzar bin Ahmad Huzairi v Kuala Terengganu Specialist Hospital Sdn Bhd & 11 Ors, the infant Thaqif was 11 months old in 2011 when he first visited a private hospital with complaints of fever and swelling on his neck. The doctor at that hospital prescribed various medications and sent Thaqif and his parents home.
However, they returned to the private hospital the next day and informed the doctor that Thaqif’s condition had worsened. The doctor intended to have Thaqif admitted to the hospital but the parents could not afford it. Instead of referring Thaqif to a public hospital, the doctor advised the parents to wait a few days and to continue giving the medications provided earlier.
The parents, relying on the doctor’s advice, went home and cared for Thaqif over the next few days. After a few days, seeing that Thaqif’s condition was not improving, they decided to bring him to a Government hospital
However, despite the severity of Thaqif’s condition, he was only seen by an Ear, Nose & Throat (“ENT”) specialist approximately 14 hours after his admission to the Government hospital. A plan was then made to intubate Thaqif in order to secure his airway but Thaqif collapsed while being transported to the operating theatre for intubation. The collapse was due to the swelling on his neck moving and blocking his airway. He was resuscitated, but the damage to his brain was already done. He was later diagnosed with, amongst others, hypoxic ischemic encephalopathy.
A suit was filed in 2018 against both the private and Government hospitals and the practitioners involved. The defendants argued that Thaqif’s parents were wholly or contributorily negligent as they had, amongst others, allegedly delayed in bringing Thaqif to the Government hospital.
The High Court allowed Thaqif’s claim and awarded approximately RM1.9 million in damages, excluding interest and costs (see Ahmad Thaqif Amzar bin Ahmad Huzairi v Kuala Terengganu Specialist Hospital Sdn Bhd & 11 Ors [2021] 9 MLJ 10). However, the High Court also apportioned liability in the following manner; the private hospital and the doctor who attended to Thaqif there at 15 %; the Government hospital and the tortfeasor doctors at 55%; and the parents at 30%.
The parties appealed and the Court of Appeal maintained the High Court’s apportionment of liability and also reduced the damages awarded by the High Court to approximately RM1.5 million (see Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through mother and her litigation representative, Majdah bt Mohd Yusof) and other appeals [2023] 1 MLJ 281). Thaqif has since obtained leave to appeal to the Federal Court.
Thaqif’s case is one of the few reported medical negligence cases involving a cerebral palsy infant patient who did not suffer brain injuries before or during the birth events but as a result of medical treatment received much later in life. It is possible for infant patients to suffer brain injuries as a result of, for example, negligent paediatric or neonatal care provided to the infant following his or her birth.
Death from Brain Injuries
Many patients, including cerebral palsy patients, die from their brain injuries. Death from brain injuries can occur suddenly or after a period of deterioration.
In Irwanbudiana bin Amsah v The Government of Malaysia & 10 Ors, the plaintiff is the father of Uwais, an infant born at a Government hospital in 2015 and was diagnosed with hypoxic ischaemic encephalopathy following his birth. He passed away at the age of 5 years and 7 months. His cause of death was listed as “Cerebral Palsy (OKU)”.
The suit was filed in 2019 at a time when Uwais was still alive. Uwais however passed away in 2021, just a few months before the trial of the case was scheduled to be heard. The Government admitted liability but only much later in 2022.
Following the trial on the issue of damages, the High Court in 2022 awarded the sum of approximately RM840,000 in damages and costs, excluding interest. The High Court awarded RM250,000 for Uwais’ pain and suffering and loss of amenities of life.
There are two other notable awards in Uwais’ case. The first is the sum of RM300,000 as aggravated damages. The High Court in making this award took into account the delay by the Government in admitting liability, the refusal by the Government to make a voluntary disclosure of medical records, the way the Government’s defence was pleaded, and the way the Government had conducted the litigation. Reproduced below is an excerpt of a passage from the unreported grounds of judgment in that case:-
“Further, the Court takes a serious view of the aggravating features such as the long delay of over 2 ½ years in admitting liability, refusal to make voluntary disclosure of medical records causing the cause of action for negligence to be concealed and the filing of this claim to be delayed by a few years and the way the defence is being pleaded and trial conducted…”
The second notable award is the sum of approximately RM49,000 as special damages, as there was evidence that Uwais’ parents had prior to the filing of the suit incurred expenses to renovate Uwais’s room, therapy space and bathroom in order to improve Uwais’ quality of life and to aid his long-term care.
Uwais’ case is pending appeal in the Court of Appeal.
In Mashitoh binti Musa v The Government of Malaysia & 11 Ors, the plaintiff is the mother of Fatimah, an infant who like Uwais was born at a Government hospital (though in 2014) and who was diagnosed to have suffered neonatal hypoxic ischaemic encephalopathy. She passed away at the age of 2 years and 8 months. Her cause of death was noted to be severe sepsis with underlying cerebral palsy.
A suit was filed in 2019 and the Government admitted liability in respect of the claim but much later in 2022. Following a trial on quantum, the High Court in 2022 awarded the sum of approximately RM380,000 in damages and costs, excluding interest. Similar to Uwais’ case, the High Court awarded RM250,000 for Fatimah’s pain and suffering and loss of amenities of life. Neither party appealed the High Court’s decision.
Conclusion
Brain injuries resulting from medical negligence have far-reaching implications for the patients and their family members who often act as their full-time carers. Many families often do not have the financial means of providing the type of expensive care that such patients require, let alone provide them with a high enough standard of care that may potentially increase their shortened life expectancies
Worse still, many families caring for brain injury patients do not realise that there had been negligent treatment provided and which led to such injuries. The courts have seen infants sue in medical negligence for events that occurred as far as 15 years later. In many instances, the patients do not outlive the consequences of their brain injuries and meet an untimely death.
Medical negligence litigation is a difficult and complex area of law. It requires, amongst others, specialised knowledge about both the law and medicine, extensive research of both areas, detailed analysis of voluminous documents including medical records and reports, and instructing medical experts of suitable qualifications and experience.
By Jeremy Balang and Raymond Mah
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
